A 16th century painting by Jacopo Pontormo, Portrait of a Young Man in a Red Cap, which had been subject to an export deferral beginning in December 2015, is now stuck in cultural export limbo. This is because the owner of the portrait, American billionaire J. T. Hill, has refused a matching offer from a British institution, The National Gallery, which had been willing to pay £30 million for the work, the amount that had earlier been set as the fair market price by the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA for short).

Jacopo Pontormo, Portrait of a Young Man in a Red Cap, 1530

This isn’t how cultural export controls are supposed to function in the UK. Here is how it usually works. The owner of a cultural object looks to export the object. Many times this is because the owner hails from another country and has merely bought the object from a UK seller or at a UK auction. But anything deemed a ‘national treasure’ cannot leave these shores without an export licence. And so, after a review by the RCEWA, a national treasure will usually only be granted a licence after a deferral period, an amount of time (often around six months, but sometimes longer) in which institutions within the UK can scramble to raise the funds necessary to purchase the work from the owner. And if an institution can make a ‘matching offer’ to the owner that matches the fair market value determined by the RCEWA then the sale can go through and the object will remain forever on display at a fine British museum or gallery. Usually. But not this time.

Here, the £30 million bar was met by the National Gallery, but Mr Hill said no. He is free to do so. There is no such thing as a ‘compulsory purchase’ under the UK system. Such systems exist in some Continental European countries like France and Italy. But in the UK, the state cannot interfere to such an extent with an owner’s property rights. This is Britain after all, and here the free market reigns. Well, most of the time.

Joshua Reynolds, Portrait of Omai, 1776

A problem like this one rarely arises. In fact, the best known example occurred when the purchaser of Joshua Reynolds’s iconic Omai portrait rejected a matching offer of over £12 million, that time coming from the Tate. In that case, the export licence was refused. And so in this case as well, when UK Culture Secretary Karen Bradley refused to grant the licence to Mr Hill. In fact, this is the only scenario in which a cultural export licence can be outright denied to a potential exporter.

But why did Mr Hill reject the National Gallery’s offer? £30 million is nothing to sniff at, that’s for sure. Especially when this had been the fair market value accepted by the RCEWA back in 2015. Well, between then and now, a little something called the Brexit Referendum happened, as a result of which the Pound Sterling has dropped significantly vis-à-vis the US Dollar. And so £30 million circa December 2015 is not quite the same as £30 million at the beginning of 2017, at least as far as an American owner is concerned.

In this context, it is somewhat surprising that the Secretary, in making her decision to refuse the licence, did not have a little more sympathy for the owner. But her position can perhaps be explained by the enormous amount of time and resources that went into building that offer, supported as it was by a number of public bodies and private donors (even the National Gallery doesn’t just have that sort of money lying around). In fact, the Art Fund has come out calling for the rules on export control to be tightened. The problem of course is how to make sure the owner of an object will agree to accept the matching offer when there is no statutory requirement to do so. A promise, as in this case, does not seem to be enough. Although things can change in a year’s time. Can’t they?